What Happens to the Kids?

Naming a guardian for your children is a very crucial part of estate planning. If parents leave minor children behind without selecting a guardian beforehand, then the matter will have to be resolved in court. This might potentially create a dispute in the family and make children suffer even more. Additionally, if you never appointed a guardian, it is possible your children may wind up in the care of the State while they are mourning the loss of their parents. To make sure that your children are going to be taken care of by someone you wish them to be with you would have to name a guardian in your will. The selected person will become the official legal guardian of your children after their parent(s) death and the Surrogate Court’s approval of the guardianship (that is after the will gets probated). A guardian may be needed not only if both parents die but also if they are unable to take proper care of their children for other reasons, for example if they are sick, unconscious, they are being deported or missing or when they abandon the child. When choosing a guardian, you need to consider a handful of factors, for example if your appointed guardian would actually want to take on the responsibility and if they have means to do so, where they live and what are their living conditions, if they share your values and would raise your children the way you would have wanted it, if you child would feel good with them and more. It is recommended that you think ahead and in this unlikely case scenario of both parents not being able to take care of the child then someone you trust takes over.

In a surprising change from prior New York Governors, Governor Hochul announced just a few days ago that Medicaid will soon no longer require an asset test for seniors over 65 when seeking to qualify for Medicaid. This is a 180 change from recent law, where the lookback period for home care was increased from one month to 2.5 years. Now, there will be no "lookback" at all. What does this mean? It means that when applying for Medicaid, seniors no longer have to be concerned with spending down their assets first. A person can have hundreds of thousands of dollars in the bank, but this will no longer stop them from being approved for Medicaid. Do I still need to plan? Yes! Medicaid can still place a lien on your estate upon your passing, so it is important to transfer your assets to irrevocable trusts before you apply for Medicaid, so that the assets will not be seen as recoverable for amounts paid by Medicaid. Additionally, Gov. Hochul's changes still include an income test, so it is important to plan with an elder law attorney to ensure a successful application for Medicaid. Contact our office if you have additional questions.

Let’s take a look at the following scenario. Your parents are selling their house and decide to give you the profits for safe keeping. This way, the money is in your name in case one or both of them need to apply for Medicaid in the future. Sounds like a good idea, right? WRONG! When applying for Medicaid, that money would be considered a gift. Medicaid will then still be able to count it as belonging to your parents and include it when calculating their assets. So, while the intensions were good in moving that money out of their name, it does not help in the way you thought it would. Protecting your assets for Medicaid planning purposes is something not enough people think about, but it is important to consider as we all get older. Kate Maguire and the attorneys at Ken Maguire and Associates can explain and help you determine the best way to protect your money. Don’t hesitate, call Kate at 516-228-8400 today.

There has recently been a spotlight on the concept of guardianship, and many people are wondering how it differs from a power of attorney. While both allow an individual to act on another’s behalf, the level of decision making is quite different, depending on a person’s cognitive ability and state of mind. With a power of attorney, someone who is capable of making decisions, but not physically able to carry them out, can designate a power of attorney to take care of financial responsibilities such as banking, paying bills, and signing legal documents. A guardianship is put into place when an individual has lost the capacity to make and carry out decisions. The guardian is appointed by the court with the intention of operating in the person’s best interests. In situations where a power of attorney is used, a person can dictate what decisions are to be made by the individual chosen to do so. With a guardianship, all decision-making authority is shifted to the guardian. In addition, a person can change the designation of a power of attorney, while a guardianship must be changed by the court. While a guardianship is for extreme cases, it is important for all adults to have a power of attorney in place for unexpected circumstances. If you have questions or would like more information how to protect you and your loved ones with a power of attorney or guardianship, contact Kate Maguire at 516-228-8400.

There has been a lot of talk in the media recently about guardianships and questions of whether they prevent a person from maintaining their rights. Much of that discussion is either inaccurate or could not happen in the State of New York. For example, the scenario in Netflix’s I Care A Lot could never happen in New York, as a guardian cannot be elected in New York without notice to the individual and her/his family. What is a guardianship? In New York, a guardianship may be granted for an individual who is unable to provide for their personal needs and/or property management, and cannot adequately understand and appreciate the nature and consequences of such inability. A guardianship is not necessarily permanent and can be terminated should there no longer be a need for a guardianship. In New York, many protections in New York are put in place to prevent abuse during a guardianship. For example: • A guardian is not elected without notice to you and your relatives • An individual has a right to counsel in a guardianship proceeding, and if they cannot afford counsel, counsel will be appointed for them. • A guardian cannot put you in a nursing home without a court order. • A guardian cannot sell your home without a court order. • A court examiner reviews all monetary funds spent by your guardian for review. • A guardian must file an annual report about your medical condition, which includes a statement from a doctor.

Many people worry that it is either too early to contact an attorney to discuss the future. The fact is, it is never too early, and never too late to prepare! While encouraging their parents to ensure they have the proper documentation in place, Millenials and Gen. Xers should be securing their futures and those of their children as well. Especially in our current climate, we are all aware of how precious life is, and that it can end much too soon. Those who have small children should ensure that they have a will in place that names a legal guardian in case of your and/or your spouse's untimely death. It is also important for adults to execute a health care proxy in the event that they require emergency medical care and are unable to advocate for themselves. The parent of an adult child has no legal rights to act as health care proxy without such a document in place. Contact Kate Maguire if you have any questions.

New York has passed an unprecedented measure to allow individuals to obtain legal estate documents while safely staying at home while COVID-19 continues to spread. Usually in order to execute a will or other estate documents in New York, witnesses are required, as well as notaries. Now, these witnesses and notaries can all be done virtually, so long as the individuals have access to video conferencing. Our office is able to provide remote consultations, drafting, witnessing and notaries. No one should have to worry about having their affairs in order during this difficult time. You can contact our office via email at info@kmlawny.com.

We're ready to assist you in your estate planning needs during the COVID-19 epidemic.

First, what is a health care proxy? A health care proxy is a legal document that you sign, granting an individual access to your medical records and the ability to direct your care in the event that you are unable to do so. Most people simply assume that only the elderly, disabled or infirm need such forms, but this is a myth. The truth is, once a person is over the age of 18, medical professionals are not permitted to provide your loved ones with your medical information, or to take direction from your loved ones without a health care proxy. This includes ALL loved ones, including your spouse, parent, sibling or adult child. Even your spouse must have an executed health care proxy to have access to your medical records and make decisions on your behalf if you cannot. The following scenarios are just some of the things that may happen that require a health care proxy: Your daughter is in a car accident while away at college, and arrives to the hospital unconscious. Your husband has a seizure on the job, and is transported to the hospital by ambulance. Your mother is undergoing surgery, and complications arise requiring decisions on the course of treatment. Without a health care proxy, these individuals' loved ones cannot obtain any information regarding the patient's status, course of treatment, or make any decisions regarding care on the patient's behalf. Tragedy can strike at any age, and if you are unconscious, you will not be able to sign a health care proxy. A health care proxy is necessary at any age, and easy to create. Our office can help assist you with ensuring you are prepared for wherever life takes you.